Senjuti Roy (Nee Sengupta) vs New India Assurance Co. Ltd. & Ors
2023 Latest Caselaw 1592 Cal

                                      1


                     IN THE HIGH COURT AT CALCUTTA

                        (Civil Appellate Jurisdiction)

                                Appellate Side
Present:

The Hon'ble Justice Bibhas Ranjan De


                              F.M.A 1160 of 2009
                                    With


                         Senjuti Roy (nee Sengupta)
                                     Vs.
                     New India Assurance Co. Ltd. & Ors.


For the Appellant/                :Mr. Ashique Mondal, Advocate
Claimant


For the Respondent no.1/         :Mr. Parimal Kumar Pahari, Advocate
New India Assurance Co. Ltd.


For the Respondent no. 2/         :Mr. Sanjay Paul, Advocate
Oriental Insurance Co. Ltd.




Heard on                            : February 20, 2023
Judgment on                          : March 09 , 2023



Bibhas Ranjan De, J.

1. This appeal is directed against the judgement and award passed by

Learned Motor Accident Claims Tribunal, Additional District Judge, Fast

Track Court whereby Ld. Judge awarded a sum of Rs. 60,000/- towards

pain and suffering and also Rs. 20,000/- towards medical expenses in

favour of the claimant /appellant.

2. The claim petition under Section 163A of the Motor Vehicles Act, 1988

arose out of injury sustained by Senjuti Roy in an accident alleged to

have been occurred on 24.12.2001 at about 9.40 hours while drivers of

the two vehicles bearing no. WBU-1567 (mini bus) and WBS-2743 (bus)

were driving in rash and negligent manner through GR road coming from

opposite direction and collided with each other. As a result, claimant

Senjuti Roy sustained severe injuries and removed to hospital. Both the

drivers of the vehicles were responsible for the accident. That is why,

claimant filed the claim petition with a prayer for compensation to the

tune of Rs. 3,20,000/-along with medical expenses and interest. Both

the Insurance Companies namely New India Assurance Company and

Oriental Insurance Company Limited contested the claim petition by

filing their respective written objection denying all material averments of

the claim petition contending, inter alia, that claimant is not entitled to

any compensation.

3. To prove the case, claimant himself examined as PW-1, who corroborated

the contents of the claim application. In cross-examination, claimant

testified that at the relevant point of time he was sitting in the cabin of

the mini bus. He denied all suggestions thrown at him in course of her

cross-examination.

4. One Dr. A Chowdury was examined as PW-2. In his examination-in-chief

he testified that on 22.03.2004 he examined claimant Senjuti Roy who

had no sensation on lateral aspect of her right hand. Dr. issued a

certificate of permanent disablement to the extent of 55% and that report

was admitted in evidence as exhibit 10. In cross-examination doctor

testified that he did not make any medical treatment or clinical treatment

of the claimant Senjuti Roy prior to 22.03.2004. He further testified that

he was not attached to either Howrah General Hospital or S.S.K.M

Hospital during that period. He had no knowledge about any accident

met by the claimant.

5. In course of evidence of witness a good number of documents were

admitted in evidence as exhibit 1 to 10.

6. Ld. Judge after analyzing the evidence on record returned his finding

that none of the doctors of the hospitals were claimant was treated, was

not examined to substantiate the treatment of the claimant after the

accident. Ld. Judge did not rely on the disability certificate of the doctor

who, admittedly, never treated the claimant. However, considering the

medical expenses and pain and suffering Ld. Judge awarded

compensation to the tune of Rs. 80,000/-in all.

7. Mr. Asquie Mondal, Ld. Advocate, appearing on behalf of the Claimant

has referred to the evidence on record particularly the evidence on the

issue of disability. It is submitted by Mr. Mondal, referring to Employees

Compensation Act, 1923, that percentage of disability can be assessed by

the qualified medical practitioner. Therefore, according to Mr. Mondal,

the disability certificate issued by Dr. A Chowdhury can't be thrown out

of Court also in view of the Provision of Section 45 of the Indian Evidence

Act. Mr. Mondal has referred to discharge certificate issued by S.S.K.M

hospital which proved the admission of the claimant in the hospital for

21 days. Accordingly, under Section 320 of the Indian Penal Code

claimant suffered a grievous hurt.

8. Mr. Mondal alternatively claimed for Rs. 2,50,000/- under Section 164

of the Motor vehicles Act.

9. In support of his contention, Mr. Mondal relied on the following Cases:-

 Rammurti and others Vs. Punjab State Electricity Board reported

in 2022 (4) PAC 738 (SC)

 Golla Rajana and other Vs. Divisional Manager and another

reported in (2017) 1 Supreme Court cases 45.

 B Laxmana Vs. Divisional manager, New Indian Assurance

Company limited etc. reported in 2014 SAR civil 781.

10. Ld. Advocate, Mr. Parimal Kumar Pahari, appearing on behalf of

the New India Assurance Company has supported the judgment assailed

in this appeal. Mr. Pahari has contended that Hon'ble Apex Court in

Rammurti (supra) allowed Rs. 5,00,000/- compensation in view of

Section 164 of the Motor Vehicles (amendment) Act, 2019 on the ground

that claim under Section 140 was allowed up to Rs. 50,000/- but, in our

case claim petition was filed under Section 163A leaving no scope for no

fault liability under Section 140 of Motor Vehicles Act, 1988 prior to

amendment act, 2019. Mr. Pahari has contended that the Hon'ble Apex

Court did not interfere with the concurrent finding of the tribunal and as

well as by the High Court.

11. No argument has been advanced in this Case regarding injury

sustained by the claimant in an accident alleged to have been take place

on 24.12.2001 by the involvement of two vehicles i.e mini bus and bus

due to rash and negligent driving of both the vehicles. However, from the

evidence of injured/claimant together with the F.I.R and seizure list I do

not find any reason to disbelieve the factum of injury sustained by the

claimant in the accident alleged in this case.

12. It is also not disputed that injured had to undergone treatment in

S.S.K.M Hospital for a considerable period i.e from 24.12.2001 to

14.01.2002. Ld. Tribunal did not rely on the certificate of permanent

disability to the extent of 55% issued by Dr. A Chowdhury (PW-2) on the

basis of medical documents with bed-head tickets and discharge

certificate issued by the S.S.K.M Hospital. Ld. Tribunal also disbelieved

the disability certificate for non-examination of doctors who treated the

claimant/ injured at Howrah General Hospital and S.S.K.M Hospital.

13. With regard to the issue of disability certificate, Mr. Mondal relied

on Golla Rajanna (supra) and B. Laxmana (supra) and tried to make

this court understand that the disability certificate (exhibit- 10) duly

proved by the qualified medical practitioner (PW-2) cannot be

disregarded.

14. In Golla Ranjnna (supra) Hon'ble Apex Court dealt with a case

decided by workmen's compensation commissioner in respect of an

accident in course of employment invoking the Provision of Workmen's

Compensation Act, 1923. In that case Hon'ble Apex Court accepted the

disability certificate in view of the Provision of Section 4(1)(c)(ii) of the

Workmen's Compensation Act, 1923 wherein assessment of disability

certificate can be made only by a qualified medical practitioner. But, in

our case we are dealing with an accident by the involvement of two

vehicles while the claimant/injured was travelling by one of the two

vehicles.

15. In B. Laxmana (supra) Hon'ble Supreme Court dealt with a

disability certificate issued by one Orthopedic Surgeon (PW-7) and the

claim was also under the workmen's Compensation Act, 1923 unlike the

case before this court.

16. In our case, the appellant/claimant sustained injury in an accident

by the involvement of one mini bus and one bus while he was travelling

by the minibus. Disability certificate was issued by one Dr. A Chowdhury

(PW-2), who was not an orthopedic surgeon. Doctor treated the

appellant/ claimant on 22.03.2004 after three (3) years of accident which

occurred on 24.12.2001 doctor never treated the injured before

22.03.2004.

17. Appellant/claimant was treated in the Howrah State General

Hospital and thereafter, SSKM Hospital where he was admitted from

24.12.2001 to 14.01.2002. From the discharge certificate (exhibit 4) it

appears that he got admitted in the SSKM Hospital for cut injury of right

arm. From the OPD ticket of SSKM Hospital available on record it

appears that the claimant was advised to do normal activates and

nothing abnormal was found by the SSKM Hospital lastly on 01.02.2003,

whereas Dr. Chowdhury, (PW-2) issued disability certificate (exhibit-10)

assessing 55% disability that too on 22.03.2004. It is also not disputed

that none of the doctors of SSKM Hospital treated appellant/ claimant

was examined in support of injury of the claimant.

18. Mr. Mondal contended that disability certificate is an expert

opinion within the meaning of Section 45 of the Indian Evidence Act,

1872 and for that reason the document can not be disregarded.

19. Section 45 of the Indian Evidence Act deals with acceptability of

the expert opinion. But, it is trite law that opinion of an expert should be

received with great caution. The Court must have the jurisdiction to

evaluate the opinion of a doctor in background of any particular facts

and circumstances. More so, Provision of Section 45 of the Indian

Evidence Act, 1872 does not stand in the way of doing so.

20. In the aforesaid view of the matter, I am also unable to rely on the

disability certificate.

21. Alternatively, Mr. Mondal claimed 2.5 lakhs within the meaning of

Provision of Section 164 of the Motor Vehicles (amendment) Act, 2019. In

support of his contention, he relied on a case of Rammurti (supra)

wherein Hon'ble Court recorded as follows:-

" 2. The appeal has arisen from a judgment of a

Single Judge of the High Court of Punjab &

Haryana dated 10 March 2009 in FAO No 1461 of

1994.

3. The High Court was considering an appeal

arising from an award of the Motor Accident

Claims Tribunal, Bhatinda dated 12 April 1994.

The Tribunal dismissed the application file by the

appellants under Section 166 of the Motor Vehicles

Act 1988. However, the claim under Section 140

was allowed and the appellants were held entitled

to receive an amount of Rs 25,000 on account of

the death of Ved Parkash.

4. The High Court has affirmed the judgment of

the Tribunal in regard to the dismissal of the

claim under Section 166 of the Motor Vehicles Act

1988. However, having due regard to the

amendment of the Provisions of Section140 in

1994, the amount payable has been enhanced

from Rs 25,000/- to Rs. 50,000/-.

5. There is no cogent basis for this Court to

entertain the challenge against the findings of

fact which have been recorded concurrently by the

Tribunal and by the High Court while dismissing

the claim under Section166 of the Motor Vehicles

Act, 1988.

7. The Provisions of Section 140 which formed a

part of Chapter 10 of the Motor Vehicles Act 1988

were omitted by Act 32 of 2019. Simultaneously,

Chapter 11 was substituted of which Section 164

provides for payment of compensation in the case

of death in the amount of Rs 5 lakhs and in the

case of grievous hurt of Rs. 2.5 lakhs.

8. We are inclined to give the appellants the

benefit of the beneficial provisions which have

been enacted by Parliament. Hence, in

modification of the order of the High Court, we

direct that the appellants shall be entitled to an

amount of Rs 5 lakhs as compensation. Howeever,

if the amount of Rs. 50,000 which has been

awarded by the High Court has already been paid

over, the balance (or the entirety of Rs 5 lakhs if

no mount has been paid) shall be paid over to the

appellants by 30 November 2022.

9.The appeal is accordingly disposed of.

10. Pending applications, if any, stand disposed

of."

22. Here Hon'ble Apex Court dealt with a case under Section 166 of

the Motor Vehicles Act, 1988 where the claim tribunal allowed 25,000/-

under the Provision of no fault liability i.e Section 140 of the Motor

Vehicles Act, 1988. High Court affirmed the judgment of the Ld. Tribunal

but, enhanced the amount of Rs, 25,000/- to Rs. 50,000/- under Section

140 of the Motor Vehicles Act, 1988 due to amendment of that provision

in the year 1994. Hon'ble Apex Court did not interfere with the dismissal

order of Ld. Tribunal as well as High Court but, granted benefit of the

beneficial Provisions of Section 164 under the Motor Vehicles

(amendment) Act, 2019 in exercising plenary power.

23. By the Amendment Act, 2019 Section 140 to 144 under chapter X

of the Motor Vehicles Act, 1988 were omitted. The scheme of no fault

liability under Section 140 was incorporated in Section 164 of the Motor

Vehicles Act, after the Amendment Act, 2019. If we read Section 149,

164 & Second Proviso of Sub Section 1 of Section 166 of the Motor

Vehicles Act, 1988 after the Amendment Act, 2019, it comes to view that

a claimant who filed a claim under Section 166 of the Motor Vehicles Act,

1988 can claim compensation under Section 164 i.e. no fault liability at

the initial stage within the procedure provided under Section 149 of the

Motor Vehicles Act, 1988.

24. We are dealing with an application under Section 163A of the

Motor Vehicles Act, 1988 which has already been adjudicated by the Ld.

Tribunal awarding compensation of Rs. 80,000/-. In that view of the

matter, appellant/ claimant of this case can not claim any compensation

under Section 164 of the Motor Vehicles Act, 1988.

25. However, from the evidence and documents available on record, I

find that Appellant/ claimant had to suffer for a considerable period for

his injury and during that period he had to incur expenditure towards

medicine etc.

26. Considering the pain and suffering of the appellant/claimant, I

find it justified to award compensation of Rs. 1,50,000/- towards pain

and suffering together with medical expenses.

27. From the record, it appears that claimant has already received the

total awarded amount of Rs. 80,000/- along with interest from both the

Insurance Company. Therefore, balance amount of Rs. 70,000/- shall

have to paid by the Insurance Companies i.e. New India Assurance

Company and Oriental Insurance Company & other in equal share along

with interest @ 6% per annum from the date of filing of the claim petition

till deposit of the sum before the office of the Ld. Register General of this

Court.

28. Insurance companies are directed to pay their respective share

with interest within 6 weeks from date.

29. Learned Registrar General is requested to disburse the amount, in

favour of the appellant/claimant on proper verification and identification.

30. With the aforesaid observation the appeal being FMA 1160 of 2009

stands disposed of.

31. Pending application, if there be any, stands disposed of.

32. Let the records of Tribunal along with copy of the judgement be

transmitted back immediately.

33. Urgent Photostat certified copy of this order, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

[BIBHAS RANJAN DE, J.]